Mcmanus v. Seabd. Air Line Ry

• Decision Date: 05 December 1917
• Docket Number: (No. 412.)
• Citation: 174 N.C. 735,94 S.E. 455
• Parties: McMANUS . v. SEABOARD AIR LINE RY.
• Court: North Carolina Supreme Court

94 S.E. 455

(174 N.C. 735)

McMANUS .

v.SEABOARD AIR LINE RY.

(No. 412.)

Supreme Court of North Carolina.

Dec. 5, 1917.

Appeal from Superior Court, Union County; Webb, Judge.

Action by George W. McManus, administrator of Gus M. McManus, deceased, against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

The action was to recover damages for death of plaintiff's intestate, caused by the alleged negligence of defendant company and, on denial of liability, plea of contributory negligence, etc., the following verdict was rendered by the jury:

"(1) Was plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"(2) If so, did plaintiff's intestate by his own negligence contribute to the injury which caused his death? Answer: Yes.

"(3) If so, notwithstanding the negligence of plaintiff's intestate, could the defendant have avoided the injury which resulted in the death of plaintiff's intestate? Answer: Yes.

"(4) What damage, if any, is plaintiff entitled to recover? Answer: $800."

Judgment on the verdict for plaintiff, and defendant excepted and appealed, assigning for error chiefly the denial of its motion to nonsuit.

Cansler & Cansler, of Charlotte, and Frank Armfield, of Concord, for appellant.

Stack & Parker, of Monroe, for appellee.

HOKE,. J. There was evidence tending to show that, in January, 1917, the defendant company and the Piedmont and Northern were using a temporary bridge or trestle over the Catawba river near Mt. Holly, N. C, and their trains running over a main track on said trestle which was straight and approached in a straight line from the west for a distance of 300 to 400 feet; that the Piedmont and Northern were having this trestle made a permanent structure or were building a bridge just above, and for that purpose had placed a dummy line over the trestle from the western bank to a chute in the middle of the stream, about four feet from the main track and parallel thereto, as far as it extended; that cars carrying dirt and other material were run out on the dummy track to the chute where the load was dumped in same, carrying it to the workmen below; that this work was being done by the Shiplett Concrete Company, and plaintiff's intestate was an employ^ of the latter company, whose duties were to dump the loads into the chute and clear the dirt and gravel from the tracks while the cars went back for another load; that owing to the conditions prevailing, the speed of regular railroad trains passing over the trestle was restricted to four miles per hour, and there were lights kept on the bridge at night, and there was also a headlight on the engine of defendant's train, though this was somewhat dim; that, on the occasion in question, there had been a break in a cofferdam in the river and the concrete company's entire force had been kept to the work till 2 o'clock, and plaintiff's intestate, engaged on his work at 4:25 a. m., was run over by a freight train of the Seaboard Company, approaching from the west, had both legs cut off, the right one close to the body and the left just below the knee, was thrown to the river below, and died shortly thereafter. There were also facts in evidence permitting the inference that the intestate had laid some boards from the chute to the main track and was lying down thereon and very likely asleep or dulled by fatigue at the time he was run over and killed.

On this evidence, as It appears in the case on appeal, the judgment overruling the motion to nonsuit was clearly correct, and the case was properly submitted to the jury on an issue presenting the question whether defendant company or its employes had negligently failed to avail itself of the last clear chance of avoiding the injury, a position approved and illustrated in many decisions of our court dealing with the subject. Johnson v. Railroad, ...